Two petitions(1) have been filed
challenging the Attorney General's certified ballot title for Initiative
Petition 56 (2010). See ORS 250.085(2) (specifying requirements for
seeking review of a certified ballot title). This court reviews the certified
ballot title to determine whether it substantially complies with ORS
250.035(2). See ORS 250.085(5) (stating standard of review). For the
reasons set out below, we refer the ballot title to the Attorney General for
modification.

Initiative Petition
56, if enacted, would affect criminal law in three respects.(2) First, it would require
an inmate incarcerated for a felony to serve at least 80 percent of his or her
sentence,(3)
but it would not affect mandatory minimum sentences. Second, it would permit
trial courts to require, as part of an inmate's sentence, that the Department
of Corrections (DOC) provide appropriate drug treatment services. Third, as a
general rule, it would give trial courts discretion to require that sentences
be served consecutively or concurrently.(4)

The Attorney General
certified the following ballot title for Initiative Petition 56:

"Summary: Current
law allows early release of some inmates who have served at least 70 percent of
their felony sentences; does not allow any reduction of mandatory minimum
sentences; requires drug treatment for certain offenders. Current law presumes
that criminal sentences are to be served concurrently and allows consecutive
sentences only upon specified factual findings by the court. Measure requires
all inmates to serve at least 80 percent of original term of incarceration
imposed by sentencing court; retains requirement that mandatory minimum
sentences may not be reduced. Measure retains requirement that Department of
Corrections provide drug treatment services to specified individuals. Measure
presumes that criminal sentences are to be served consecutively, but gives
trial court additional broad discretion to impose concurrent or consecutive
sentences. Other provisions."

Petitioners challenge the caption, the
"yes" vote result statement, the "no" vote result
statement, and the summary.

ORS 250.035(2)(a)
requires the Attorney General to draft a 15-word caption that "reasonably
identifies the subject matter of the state measure." In this case, the
Attorney General sought to identify the subject matter of the measure by
referring to two of its effects: the increased length of time incarcerated
felons will serve and the grant of discretion to trial courts to impose
consecutive or concurrent sentences. See Kain v. Myers, 336 Or 116,
121, 79 P3d 864 (2003) (recognizing that listing a measure's effects is one way
to identify its subject matter). The Brady petitioners argue that the
caption is underinclusive because it omits any reference to a third and equally
important effect of the measure -- granting trial courts authority to require DOC
to provide drug treatment to certain inmates. The Attorney General responds that
drug treatment is a minor aspect of the measure and that, in any event, that
aspect of the measure does not change current law.

Petitioner Berman
raises a different challenge to the caption. He argues that the use of the
term "increases" is too broad. Berman notes that, because the
measure does not affect mandatory minimum sentences, a person serving a
mandatory minimum sentence will still be required to serve 100 percent of that sentence.
Some mandatory minimum sentences, such as Measure 11 sentences, will also be
the maximum sentence for the crime, and a defendant sentenced for a Measure 11
offense will have to serve that sentence with no reduction. Cf. State v.
Rodriguez/Buck, 347 Or 46, 72-73, 217 P3d 659 (2009) (explaining that the
Measure 11 sentence in that case was both the minimum and the maximum
sentence). Finally, Berman notes that Measure 11 sentences are "mandatory
minimum sentences [that] currently make up nearly half the Oregon prison
population." Berman concludes that, because the measure will not increase
the time that a significant number of inmates -- those sentenced to Measure 11
sentences -- will have to serve, the unqualified use of the word
"increases" in the caption is misleading.

The Attorney General
does not dispute that the measure would not affect mandatory minimum
sentences. He also does not dispute that persons serving Measure 11 sentences
would have to serve 100 percent of those sentences and that the measure would
not increase the incarceration time for all felonies. The Attorney General
argues, however, that the use of the word "required" communicates
that the measure would have a more limited effect. He reasons:

"What the
measure would do is raise the floor on felony incarcerations, even though it
would not raise the ceiling. So, as the caption accurately states, the measure
'increases required' felony incarceration time."

(Emphasis in original.)

In our view, the
Attorney General's reading of the caption is not the most natural one. Rather,
the caption, as written, implies that the measure would increase the required
incarceration time for all felonies when, in fact, it would increase the
required incarceration time for only some felonies. Put differently, we
do not think that the word "required" communicates the limited extent
to which the measure would increase felony incarceration time.

Petitioner Berman
challenges the "yes" vote statement for the same reason that he
challenges the caption -- it is overinclusive as to the term of incarceration.
Unlike the caption, however, we conclude that the "yes" vote result
statement substantially complies with ORS 250.085(2)(b). The first part of the
"yes" vote result statement refers to incarceration for "at
least 80 percent of felony sentence." (Emphasis added.) The
inclusion of "at least" implies that some felonies will require
incarceration for more than 80 percent of the sentence. That phrase captures
the idea that the measure will not increase the time served for all felonies
and is sufficient to describe the measure's result, at least as long as we
review the ballot title only for substantial compliance.

Finally, both the
Brady petitioners and petitioner Berman challenge the summary. ORS
250.035(2)(d) requires "[a] concise and impartial statement of not more
than 125 words summarizing the state measure and its major effect."
Petitioner Berman argues that the following sentence is unnecessary: "Measure retains requirement that Department
of Corrections provide drug treatment services to specified individuals."
He reasons that, because DOC currently must provide drug treatment if the trial
court orders it, the sentence should be deleted. As explained above, however,
the statutes currently do not require DOC to provide drug treatment services to
inmates. The measure, if enacted, would impose that requirement a year earlier
than the 2009 legislation. Accordingly, we do not agree with Berman's
argument.

The
Brady petitioners raise a related but different argument. They argue that two
sentences -- the sentence stating that "[c]urrent law * * * requires drug
treatment for certain offenders" and the sentence stating that the measure
"retains requirement that Department of Corrections provide drug treatment
to specified individuals" -- are inaccurate. They contend that the law currently
does not require treatment and that the measure thus will not
"retain" such a requirement. For the reasons explained above, we
agree with the Brady petitioners' challenges to both sentences.

The ballot title is referred to the Attorney General for
modification.

APPENDIX

The People hereby enact the following statute as the Oregon
Truth in Sentencing Act:

Section 1. a. Notwithstanding any other provision of law,
no inmate who is incarcerated as a result of a felony conviction shall received
any reduction in sentence, release from custody, conditional release from
custody, or any other form of early release, where such action will cause such
inmate to serve any less than 80% of the original term of incarceration imposed
by the sentencing court.

b. This section does not in any fashion allow reduction of
any mandatory minimum prison term, by any amount; any inmate must always serve
100% of any mandatory minimum term of imprisonment.

Section 2. a. When a defendant is sentenced for any felony
crime, the sentence imposed by the court may include a requirement that the
Department of Corrections shall provide appropriate drug treatment services,
where the sentencing court finds:

i.) The defendant is drug addicted;

ii.) The
defendant is at a high or medium risk of reoffending without treatment;

and

iii.) The defendant has moderate to severe
treatment needs.

b. Nothing in this Section creates any claim, right of action,
or civil liability. This Section only requires the Department of Corrections
to carry out the order of the sentencing court. The Department has the
discretion to determine what drug treatment services are appropriate for the
defendant.

Section 3. a. A sentence imposed by the court may be made
concurrent or consecutive to any other sentence that has been previously
imposed or is simultaneously imposed upon the same defendant. A sentence is a
consecutive term unless the judgment expressly provides for concurrent
sentences.

b. When a defendant is sentenced for a crime committed
while the defendant was incarcerated after sentencing for the commission of a
previous crime, the court shall provide that the sentence for the new crime be
consecutive to the sentence for the previous crime.

Section 4. ORS 137.123 is repealed.

Section 5. This Act is effective January 1, 2011, and
applies to any sentence imposed for acts committed on or after January 1, 2011.

4.The
measure also provides that "[a] sentence is a consecutive term unless the
judgment expressly provides for concurrent sentences." That part of the
measure provides a rule for interpreting judgments that do not state whether
multiple sentences should be served consecutively or concurrently. It does not
condition a trial court's authority to impose concurrent sentences on making
certain findings.

5.The
drug treatment provisions in Initiative Petition 56 and the 2009 legislation
differ in an additional, more minor respect. Initiative Petition 56 would give
a sentencing court authority to require DOC to provide drug treatment services
to certain inmates, while the 2009 legislative provision places a statutory
obligation directly on DOC to provide drug treatment services to a described
class of inmates.

6.The
Attorney General observes that, even without the 2009 legislation, a trial
court can always include a requirement for drug treatment in a defendant's
sentence. He is careful to note, however, that "[w]hether a court could
order the Department of Corrections to provide a drug-treatment program that is
not otherwise required by law is less certain." The Attorney General
identifies no statute that would require DOC to comply with such an order, as
Initiative Petition 56 would.

In that respect, we note that ORS
137.228(2) provides that, if a trial court finds that a convicted defendant is
"an alcoholic or a drug-dependent person, the court, when it sentences the
defendant to a term of imprisonment, shall direct the Department of Corrections
to place the defendant in an alcohol or drug treatment program, to the extent
that such resources are available." ORS 137.228(2) conditions a court's
authority to direct DOC to provide alcohol and drug treatment services on the
availability of resources; Initiative Petition 56, by contrast, omits that
condition.

7.Petitioner
Berman also challenges the "no" vote result statement because it
fails to describe the current law regarding required drug treatment. We agree
with both Berman and the Brady petitioners that the "no" vote result
statement should describe what the law will be regarding required drug treatment
services if the measure is not approved.